Cynthia Faur, Michael Mostow and Lauren Harpke Write Law360 Article About A Potential Proposal for Hazardous Substances
Quarles & Brady Energy, Infrastructure & Environment attorneys Cynthia Faur, Michael Mostow and Lauren Harpke wrote a Law360 article summarizing a proposal by the Environmental Protection Agency (EPA) to designate PFAS as hazardous substances governed by CERCLA, also known as the Superfund law. If this proposal is finalized, the EPA will be able to order parties to clean up these substances and to recover cleanup costs the agency has spent.
This current proposal is a significant move toward addressing the presence of the most common PFAS chemicals — PFOS and PFOA — in the environment. And this is only the first step: In the preamble to the proposed rule, the EPA states that it is also preparing an advance notice of proposed rulemaking toward the development of regulations designating other PFAS chemicals as hazardous substances under CERCLA.
Given the difficulty of effective PFAS cleanup technologies, and the potential for significant costs, we can also expect greater litigation on allocation of liability and cost recovery at significant PFAS remediation sites, in addition to increased scrutiny on PFAS-related matters in real property and commercial transactions.
As noted above, this proposed rule is only one step in the EPA's plan to more intentionally and broadly regulate PFAS. We can expect the agency to continue acting upon the specific goals it outlined in its October 2021 PFAS strategic road map. This being the case, the regulatory landscape and obligations pertaining to PFAS will continue to be a point to watch in the years to come.